Dukies help tackle the NFL lockout

June 17, 2011Duke Law News

Professor Barak Richman found eager assistants in 2011 graduates Andrew Blumberg and Adam Braunbeck when he needed spring-semester help crafting a brief in America's most publicized labor dispute: the lockout of NFL players by owners that threatens the 2011 pro-football season.

On May 25, Richman filed an amicus brief in The United States Court of Appeals for the Eighth Circuit on behalf of the NFL Coaches Association (NFLCA) in the case known as Tom Brady v. NFL. In the brief, he argues that the player lockout is causing irreparable harm to the NFL’s coaches.

“The National Football League Coaches Association (NFLCA) is a nonunion voluntary association that represents the interests of coaches and assistant coaches currently employed by the 32 individual National Football League teams, as well as many retired coaches formerly employed by those NFL teams. These coaches are already experiencing hardship from the NFL’s lockout and are vulnerable to irreparable injury if league operations are suspended for a significant period of time, “he wrote. Blumberg and Braunbeck collected and mined coaching career data to back up his argument.

The current collective bargaining agreement expired on March 11, on that same date negotiations between the NFL Players Association (NFLPA) and the 32 NFL team owners for a new CBA came to a halt. The NFL locked out the players and the NFLPA decertified as a union. This decertification opened the door for individual players to file an antitrust suit against the NFL owners.

Following the lockout — the league's first work stoppage since 1987 — 10 players filed an antitrust suit in The United States District Court for the District of Minnesota, asking that it be enjoined.

On April 25, 2011 Judge Susan Nelson ruled in their favor, but the glimmer of hope for pro-football activity faded when the owners persuaded the United States Court of Appeals for the 8th Circuit to stay the injunction.

An antitrust specialist, Richman previously filed a brief on behalf of the NFLCA with the Supreme Court in American Needle v. NFL, also with the assistance of Blumberg and Braunbeck on the brief. He knew both shared his passion for football and would be keen to help again. “Adam is a Colts fan and Andrew is a huge Dallas Cowboys fan and that’s always been a friendly source of chit-chat in our friendship,” said Richman, admittedly a huge fan of the Philadelphia Eagles, the Cowboys’ arch rivals.

The students compiled data from a number of sources, to show that high numbers of coaching staffs in the NFL are fired after three years or less. They found that on average, over the past 10 years, 17 coaches were fired each year after only two years on the job.

Pulling the data together wasn’t easy. “It’s pretty difficult; they don’t keep records of where [the coaches] worked. We had to go through lots of news stories to find who was working where over the past decade,” said Braunbeck, of their reliance on such legally unorthodox sources as NFL.com, Pro-Football-Reference, and ESPN.com.

“It also involved looking up news articles to find things like the Washington Redskins firing their entire coaching staff, or similar stories that explain how likely it is [as a coach] that you will be looking for a new job,” said Blumberg.

“Adam and Andrew created this data, put it into a database showing a graphical presentation of the information, and that is probably the most compelling part of the brief,” said Richman.

Blumberg, who is headed to Simpson Thacher & Bartlett in New York, appreciated an opportunity to work with Richman on a second brief. “He takes your input and your assistance into something that is going to actual judges who are looking at a real- life issue,” said Blumberg.

“I’m really glad to have this experience; it’s a great chance to see where you can be in a number of years if you are really successful,” added Braunbeck, who will join the Public Defender Corps in Louisville, Ky., in the fall.

“Professor Richman is a big football fan and a very deep legal thinker, and this brief with any luck, is going to have an actual impact on the ongoing lockout. That is probably the most rewarding part of doing this research,” said Blumberg.

At a July 21 Duke Law event in Washington, D.C., Associate Justice Ruth Bader Ginsburg recapped the U.S. Supreme Court’s 2016-17 term and discussed its recent consensus among the justices, its rulings on the scope of the Trump administration’s “travel ban” executive order, and her legal legacy during an interview with Professor Neil Siegel.